The President s Immigration Accountability Executive Action of November 20, 2014: Overview and Issues

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1 The President s Immigration Accountability Executive Action of November 20, 2014: Overview and Issues William A. Kandel, Coordinator Analyst in Immigration Policy Jerome P. Bjelopera Specialist in Organized Crime and Terrorism Andorra Bruno Specialist in Immigration Policy Alison Siskin Specialist in Immigration Policy January 8, 2015 Congressional Research Service R43852

2 Summary On November 20, 2014, President Obama announced his Immigration Accountability Executive Action which revises some U.S. immigration policies and initiates several programs, including a revised border security policy for the Southwest border; deferred action programs for some unauthorized aliens; revised interior enforcement priorities; changes to aid the entry of skilled workers; the promotion of immigrant integration and naturalization; and several other initiatives the President indicated would improve the U.S. immigration system. The most controversial among these provisions will grant deferred action to as many as 5 million unauthorized aliens. The President announced the executive actions through ten Department of Homeland Security (DHS) memoranda, two White House memoranda, and three Department of Labor (DOL) fact sheets. Together, they comprise the following initiatives: Border Security: forming three new task forces as part of DHS s Southern Border and Approaches Campaign Strategy that integrates efforts not only within DHS s Customs and Border Protection (CBP) but also among other DHS agencies, such as Immigration and Customs Enforcement (ICE), U.S. Citizenship and Immigration Services (USCIS), and the U.S. Coast Guard; Interior Enforcement and Removals: revising priorities for immigration enforcement and detention; ending the Secure Communities program and replacing it with the Priority Enforcement Program (PEP), collecting and disseminating improved metrics on removals, and reforming the employment structure for ICE Enforcement and Removal Office (ERO) agents; Expanded Deferred Action for Childhood Arrivals (DACA): increasing the population eligible for the DACA program by expanding the eligibility criteria, and extending the duration of DACA and its related work authorization from two to three years; Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA): allowing parents of U.S. citizens and lawful permanent residents (LPRs) to request deferred action and employment authorization if they meet residency and other criteria and pass required background checks; Parole Rules: revising conditions under which eligible family members of military personnel, persons traveling abroad, and certain entrepreneurs may receive parole; Provisional Unlawful Presence Waivers: expanding the use of provisional unlawful presence waivers beyond spouses and minor children of U.S. citizens to also include the spouses and minor children of LPRs as well as the adult children of U.S. citizens, and clarifying the extreme hardship standard that must be met to obtain this waiver; High Skilled Workers: ensuring that all statutorily available LPR visas are fully utilized, reviewing the labor certification program and its regulations to strengthen its integrity and responsiveness to workforce changes, providing foreign workers with greater flexibility to change jobs, expanding the use of national interest waivers to retain selected highly qualified workers, expanding opportunities for students to gain on-the-job training through administrative rule Congressional Research Service

3 changes, and clarifying the meaning of specialized knowledge to ensure U.S. workers are not being unfairly displaced; Immigrant Integration and Naturalization: initiating an inter-agency task force to identify and promote both immigrant integration best practices within states and localities as well as facilitating steps that can be taken administratively within and among federal agencies, and encouraging eligible LPRs to naturalize through additional payment options and possible partial fee waivers; Immigrant Visa System: providing recommendations to streamline, modernize, and improve immigrant and nonimmigrant visa processing; Labor Protection: creating an inter-agency working group to promote effective and consistent enforcement of federal labor, employment, and immigration laws to protect all workers regardless of legal status; and Crime Victims: expanding the DOL Wage and Hour Division s role in supporting foreign national victims of human trafficking and other select crimes. According to the President, the actions were taken in response to the absence of legislation addressing major problems within the immigration system. The President has stated that his actions are temporary, and that his successor can rescind them. Those opposed to the executive actions argue they were taken largely for political purposes. They contend that once granted, such temporary measures would be difficult to revoke. Separately, a debate has arisen as to whether the President has the legal authority to take such actions, with the Administration and others arguing the President s actions fall within his authority, and many in Congress arguing the President has overstepped it. That debate and its attendant legal questions are beyond the scope of this report. Because the President announced his executive actions relatively recently, little guidance is available to clarify policies and answer questions related to the revisions and initiatives they include. The two deferred action programs, both of which require petitioners to submit fees, are the only initiatives in the executive action supported by independent fee-supported funding. The rest rely largely on changes in rules and regulations and on the coordination and marshaling of existing administrative resources. As the Administration proceeds to implement the executive actions, some in Congress have vowed to halt some or all of them. Congressional Research Service

4 Contents Introduction... 1 Overview of Major U.S. Immigration Policy Issues... 1 Broad Elements of Immigration Reform... 2 Summary of the President s Executive Action... 2 Border Security... 3 Coordinating Border Security... 5 Discussion... 6 Enforcement Priorities, Secure Communities, and Pay Reform... 7 Enforcement Priorities... 7 Detention Priorities... 9 Removal Statistics Secure Communities/Interoperability Personnel Reform Discussion Deferred Action, Parole, and Provisional Inadmissibility Waivers Deferred Action Expansion of Eligibility for DACA Establishment of the New Deferred Action Process Parole Expansion of Use of Parole-in-Place for Military Families Advance Parole Provisional Unlawful Presence Waivers Expansion of Eligibility for Provisional Unlawful Presence Waivers Clarification of Extreme Hardship Standard Discussion High-Skilled Workers Permanent Employment-Based Immigration High-Skilled Temporary Worker Visas Changes to Current Policy Preventing Visa Retrogression Labor Certification Changing Jobs National Interest Waiver Start Up Visas Optional Practical Training (OPT) L Visas Discussion Integration and Naturalization Immigrant Integration Encouraging Naturalization Discussion Other Executive Action Initiatives Modernizing the U.S. Immigrant Visa System More Consistent Enforcement of Federal Labor, Employment, and Immigration Laws Expanding Support for Crime Victims Congressional Research Service

5 Conclusion Figures Figure 1. Apprehensions and Border Patrol Staffing along the Southwest Border... 5 Contacts Author Contact Information Congressional Research Service

6 Introduction On November 20, 2014, President Obama announced his Immigration Accountability Executive Action which revises some U.S. immigration policies and initiates several programs, including a revised border security policy for the Southwest border; deferred action programs for some unauthorized aliens; revised interior enforcement priorities; changes to aid the entry of skilled workers; the promotion of immigrant integration and naturalization; and several other initiatives the President indicated would improve the U.S. immigration system. The most controversial among these provisions will grant deferred action to as many as 5 million unauthorized aliens. 1 The President announced the executive action through ten Department of Homeland Security (DHS) memoranda, two White House memoranda, and three Department of Labor (DOL) fact sheets. According to the President, the actions were taken in response to the absence of legislation addressing major problems within the immigration system. The President has stated that his actions are temporary, and that his successor can rescind them. Those opposed to the executive actions argue they were taken largely for political purposes. They contend that once granted, such temporary measures would be difficult to revoke. Separately, a debate has arisen as to whether the President has the legal authority to take such actions, with the Administration and others arguing the President s actions fall within his authority, and many in Congress arguing the President has overstepped it. 2 That debate and its attendant legal questions are beyond the scope of this report. As the Administration proceeds to implement the executive actions, some in Congress have vowed to halt some or all of them. Overview of Major U.S. Immigration Policy Issues Policy makers and immigration observers widely agree that the U.S. immigration system is broken, but they disagree on measures to fix it. Underlying these different views are broader and more fundamental debates about how many temporary and permanent immigrants should be admitted into the United States, how those immigrants should be selected for admission (e.g., needed skills, relationship to U.S. residents), and the funding levels and appropriate mix of immigration enforcement measures, among other issues. 3 Long-standing immigration-related challenges include: an estimated population of over 10 million unauthorized individuals, a large portion of whom have lived in the country for over a decade and have U.S. citizen and lawful permanent resident (LPR) children; 4 increasing 1 Migration Policy Institute, MPI: As Many as 3.7 Million Unauthorized Immigrants Could Get Relief from Deportation under Anticipated New Deferred Action Program - With Existing DACA Program Included, Anticipated Actions Could Benefit More than 5.2 Million in Total Nearly Half of U.S. Unauthorized Population, Press Release, November 30, The press release is based upon analytic work presented in Randy Capps, Marc R. Rosenblum, and James D. Bachmeier, Executive Action for Unauthorized Immigrants: Estimates of the Populations that Could Receive Relief, Migration Policy Institute, Issue Brief No. 10, Washington, DC, September For more information on this debate, see CRS Report R43782, Executive Discretion as to Immigration: Legal Overview, by Kate M. Manuel and Michael John Garcia. 3 For example, see a discussion of broad immigration debates surrounding family-based immigration in CRS Report R43145, U.S. Family-Based Immigration Policy, by William A. Kandel. 4 CRS Report R41207, Unauthorized Aliens in the United States: Policy Discussion, by Andorra Bruno. Congressional Research Service 1

7 competition among more advanced nations for the best and brightest workers, including U.S. educated science, technology, engineering, and mathematics (STEM) graduates; 5 a queue of 4.4 million individuals whose petitions for lawful permanent resident (LPR) status have been approved and who must wait, in some cases decades, for a numerically limited visa to immigrate; 6 and ongoing border security and interior enforcement challenges. 7 Broad Elements of Immigration Reform For several years, some Members of Congress have favored comprehensive immigration reform (CIR), a label that commonly refers to omnibus legislation that includes increased border security and immigration enforcement, expanded employment eligibility verification, revision of nonimmigrant visas and legal permanent immigration, and legalization for some unauthorized aliens residing in the country. The omnibus legislative approach contrasts with incremental revisions of the Immigration and Nationality Act (INA) and other immigration laws that would address some but not all of these elements, and with sequential reforms that would tackle border security and interior enforcement provisions prior to revising legal immigration or enacting legalization pathways for the unauthorized population residing in the United States. In 2013, the Senate passed the Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), a comprehensive immigration reform bill. S. 744 contained provisions that, among other things, would have increased border security and interior enforcement, expanded employment eligibility verification and worksite enforcement, offered a conditional path to legal status for many unauthorized aliens, reformed permanent immigrant and temporary nonimmigrant visas, and revised humanitarian admissions. The House took a different approach to immigration reform. Rather than consider a single comprehensive bill, the House acted on separate bills that, among other provisions, would have increased border security and interior enforcement, expanded employment eligibility verification and worksite enforcement, and substantially revised nonimmigrant and immigrant visas. 8 Summary of the President s Executive Action The President s Immigration Accountability Executive Action, announced on November 20, 2014, includes initiatives covering the following policy areas: border security; interior enforcement and removals; 5 See archived CRS Report R42530, Immigration of Foreign Nationals with Science, Technology, Engineering, and Mathematics (STEM) Degrees, by Ruth Ellen Wasem. 6 CRS Report R42866, Permanent Legal Immigration to the United States: Policy Overview, by William A. Kandel. 7 CRS Report R42969, Border Security: Understanding Threats at U.S. Borders, by Jerome P. Bjelopera and Kristin Finklea; CRS Report R43356, Border Security: Immigration Inspections at Ports of Entry, by Lisa Seghetti; CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by Lisa Seghetti; CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel. 8 In the 113 th Congress, House committees reported or ordered to be reported the following immigration bills: Border Security Results Act of 2013 (H.R. 1417); Strengthen and Fortify Enforcement (SAFE) Act (H.R. 2278); Legal Workforce Act (H.R. 1772); Agricultural Guestworker (AG) Act (H.R. 1773); and Supplying Knowledge-based Immigrants and Lifting Levels of STEM Visas (SKILLS Visa) Act (H.R. 2131). Congressional Research Service 2

8 Deferred Action for Childhood Arrivals (DACA); Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA); parole; provisional unlawful presence waivers; high-skilled foreign workers; immigrant integration and naturalization; immigrant visa system; labor protection; and crime victims. This report reviews each component of the President s executive action based on currently available information. The report is broken out by broad policy areas. Each section begins with a discussion of the context of existing policy, describes the related executive action, and summarizes how the action addresses current immigration policy challenges. Border Security Security along U.S. borders has been an ongoing subject of congressional interest since the 1970s, when illegal immigration emerged as a serious national problem. The terrorist attacks of September 11, 2001 (9/11) spurred concerns about border security, a core part of DHS s effort to control unauthorized migration. The United States Border Patrol (USBP, Border Patrol) spearheads this effort as the lead agency along most of the borders. The USBP focuses on the regions between ports of entry (POEs). 9 In addition to Border Patrol agents, other law enforcement personnel work in U.S. border regions. These include Customs and Border Protection (CBP) officers at POEs; Immigration and Customs Enforcement (ICE) agents; U.S. Coast Guard (USCG) personnel; additional federal law enforcement officers from agencies such as the Drug Enforcement Administration, U.S. Marshals Service, and Department of Agriculture; state and local police; and on occasion, the National Guard. Complementing this array of personnel are CBP s land-based surveillance assets, 10 air and marine surveillance assets, 11 and fencing and physical infrastructure For more information, see CRS Report R42138, Border Security: Immigration Enforcement Between Ports of Entry, by Lisa Seghetti. 10 These include a network of ground sensors, agent-centric mobile surveillance equipment, integrated fixed towers, agent-portable tripod-mounted surveillance systems, vehicle-mounted mobile surveillance systems, truck-mounted mobile vehicle surveillance systems, tower-mounted remote video surveillance systems, and air-based surveillance systems, all of which are linked, to varying degrees, to centralized control rooms where personnel monitor the border, alert field agents to potential incursions, and coordinate the response. In recent years, the Border Patrol s focus with respect to surveillance technology has shifted from fixed towers and other static resources to more mobile and dynamic systems. From CRS discussions with U.S. Border Patrol, December 17, 2012 and August 26, 2014; also see U.S. Border Patrol, Border Patrol Strategic Plan, Washington, DC: CBP houses much of this capacity in its Office of Air and Marine...[which] is the world s largest aviation and maritime law enforcement organization, a critical component of CBP s layered enforcement strategy for border (continued...) Congressional Research Service 3

9 USBP has experienced large-scale growth since 2004, and DHS Secretary Johnson and the Obama Administration have argued that the Southwest border is more secure than ever. 13 Yet, some Members of Congress and others have called on the Administration to do more to secure the border. Border security has been a recurrent theme in Congress s debate about comprehensive immigration reform since 2005, and some Members have argued that Congress should not consider additional immigration reforms until the border is more secure. 14 USBP is responsible for enforcing U.S. immigration law and other federal laws along the border and for preventing all unlawful entries into the United States, including entries of terrorists, unauthorized aliens, weapons of mass destruction, illicit narcotics, and other contraband. In discharging its duties, USBP patrols roughly 7,500 miles of U.S. international borders with Mexico and Canada and the coastal waters around Florida and Puerto Rico. Along the border, USBP s staffing has grown from 9,511 in FY2004 to 18,611 in FY2013, with a slight dip to 18,127 in FY2014 (Figure 1). At the same time, apprehensions at the Southwest border have declined with an uptick in recent years partly due to a rise in the number of unaccompanied children crossing illegally. It is unclear how the expansion in USBP personnel has influenced unlawful migration, but the Obama Administration and DHS Secretary Johnson have touted these two numbers as indicative of improved security along the Southwest border. 15 In recent years, CBP and USBP have developed border security plans. In May 2012, CBP released the most recent iteration, the Border Patrol Strategic Plan. It shifts attention from resource acquisition and deployment to the strategic allocation of resources by focusing enhanced capabilities against the highest threats and rapidly responding along the border. 16 From an operational perspective, this plan emphasizes the collection and analysis of information about evolving border threats; integration of Border Patrol and CBP planning across different border sectors and among the full range of federal, state, local, tribal, and international organizations involved in border security; and rapid Border Patrol response to specific border threats. 17 (...continued) security. [The Office of Air and Marine has] 1,200 federal agents, more than 250 aircraft and over 280 marine vessels operating from 83 locations in the United States and Puerto Rico. See 12 This includes items such as fencing and lighting along the border. In addition to fencing and other infrastructure in the immediate border region, DHS deploys a variety of checkpoints and forward operating bases to enhance border security. Checkpoints, including permanent and tactical (or roving) checkpoints, are located at some distance from the linear border, usually within 100 miles of the border. 13 See for example, Jeh Charles Johnson, Secretary, Department of Homeland Security, Border Security in the 21st Century, public remarks delivered at the Center for Strategic and International Studies, Washington, D.C., October 9, Hereafter Johnson, Border Security in the 21 st Century. White House, Fixing the Immigration System for America s 21 st Century Economy. 14 See, for example, Tom Howell, Jr, Senate Republicans: Immigration Reform Must Deal First with Border Security, Washington Times, November 19, 2014; Alan Gomez, Border Security Quandary Could Kill Immigration Bill, USA Today, April 2, Johnson, Border Security in the 21 st Century. 16 CBP, Border Patrol Strategic Plan, Washington, DC: 2012, p Ibid. Congressional Research Service 4

10 Figure 1. Apprehensions and Border Patrol Staffing along the Southwest Border FY2004-FY2014 Apprehensions 1,400,000 1,200,000 1,000, , , , ,000 0 Apprehensions Border Patrol Staffing Fiscal Year 20,000 18,000 16,000 14,000 12,000 10,000 8,000 6,000 4,000 2,000 0 Border Patrol Staffing Source: Jeh Charles Johnson, DHS Secretary, Border Security in the 21st Century, slides from presentation delivered at the Center for Strategic and International Studies, Washington, DC, October 9, Coordinating Border Security In one project to enhance the coordination of complex border security and inspection efforts, CBP developed the Arizona Joint Field Command (JFC). The JFC emerged in 2011 as an organizational realignment bringing together the Border Patrol with CBP s other key components, 18 under a unified command structure to integrate CBP s border security, commercial enforcement, and trade facilitation missions to more effectively meet the unique challenges faced in the Arizona area of operations. 19 The JFC includes more than 6,700 CBP employees and covers the entire state of Arizona and parts of California. DHS has announced coordination measures that appear to go much further than the JFC. Secretary Johnson first revealed the development of such border-security plans in May In written congressional testimony he describes a Southern Border and Approaches Campaign planning effort devised to create 18 Office of Air and Marine and the Office of Field Operations (CBP officers at POEs). 19 Joint written testimony of Custom and Border Protection s U.S. Border Patrol Chief Michael Fisher, (then) Office of Air and Marine Assistant Commissioner Michael Kostelnik, Office of Technology Innovation & Acquisition Assistant Commissioner Mark Borkowski, and (then) Office of Field Operations Acting Assistant Commissioner Kevin McAleenan for a House Committee on Appropriations, Subcommittee on Homeland Security hearing on The President s Fiscal Year 2013 budget request for CBP, February 29, Congressional Research Service 5

11 a strategic framework to further enhance security of our Southern border. Plan development will be guided by specific outcomes and quantifiable targets for border security, approved by me, and will address improved information sharing, continued enhancement and integration of sensors, and unified command and control structures as appropriate. The overall planning effort will also include a subset of campaign plans focused on addressing challenges within specific geographic areas. 20 Discussion On November 20, 2014, DHS Secretary Johnson expanded on the campaign by commissioning three Joint Task Forces. 21 Unlike the Arizona JFC, which brings together elements within CBP, the three Joint Task Forces will bring together personnel from CBP as well as other DHS agencies the U.S. Coast Guard, Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services (USCIS). The Joint Task Forces will also integrate capabilities of the remaining [DHS] components as needed. According to Secretary Johnson, two of these task forces will be geographically based and one will be functionally focused. Joint Task Force East will cover the Southern maritime border and approaches. Joint Task Force West will have responsibility for the southern land border and the West Coast, while an entity dubbed Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces. The memo lays out broad missions and objectives and sets a 90 day timeframe to realign personnel and stand up headquarters capabilities within each Joint Task Force. Thus far, more details about the Joint Task Forces are scarce, and several key questions loom: Will DHS alter its command and control structures as well as those of its component agencies to accommodate these new bodies? What authority will each Joint Task Force leader 22 have over Task Force personnel, immediate priorities, and budgets? Will such authority supersede the authority of component leadership in DHS? What metrics will be used to assess the effectiveness of the Joint Task Forces? How will jurisdictional disputes between Joint Task Forces and issues related to competing mission priorities be settled? 20 U.S. Department of Homeland Security, Memorandum to R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Admiral Paul F. Zukunft, Commandant, U.S. Coast Guard, Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Leon Rodriquez, Director, U.S. Citizenship and Immigration Services, W. Craig Fugate, Administrator, Federal Emergency Management Agency, and Alan D. Bersin, Acting Assistant Secretary for Policy, from Jeh Charles Johnson, Secretary of Homeland Security, Southern Border and Approaches Campaign, November 20, Ibid. 22 According to the November 20, 2014 memo, the Task Forces should adopt a supported-supporting component model. Among the Components of this Department [DHS], CBP will be the supported component in Joint Task Force West, the USCG will be the supported component in Joint Task Force East, and ICE will be the supported component in Joint Task Force Investigations. Congressional Research Service 6

12 Enforcement Priorities, Secure Communities, and Pay Reform Since its enactment in 1952, the Immigration and Nationality Act has given the Attorney General and more recently the DHS Secretary discretion to exercise the power to remove foreign nationals. Since at least 1975, a series of policy memorandums published by the former Immigration and Naturalization Service (INS) and DHS has provided guidance to immigration officers who institute removal proceedings against an alien. The guidance noted which categories of foreign nationals to prioritize for removal (i.e., prosecutorial discretion). 23 ICE Enforcement and Removal Operations (ERO) is chiefly responsible for locating removable aliens, managing custody of aliens undergoing removal procedures, and ensuring that aliens directed to depart from the United States do so (either by witnessing their removals or by physically removing the aliens). In addition, certain other DHS personnel may initiate a removal process against an alien. 24 On November 20, 2014, the DHS Secretary announced new department-wide policies for enforcement priorities and the apprehension, detention, and removal of aliens. 25 This guidance is effective on January 5, In addition, Secretary Johnson announced a review and actions to overhaul the pay scale for immigration officers in ERO. 26 Enforcement Priorities Secretary Johnson wrote in the November 20, 2014 memorandum on enforcement priorities: Due to limited resources, DHS and its components cannot respond to all immigration violations or remove all persons illegally in the United States. As is true of virtually every 23 In the civil immigration enforcement context, the term prosecutorial discretion applies to a broad range of discretionary enforcement decisions including issuing or canceling notices to appear (NTAs) which start the removal process, allowing other forms of removal (e.g., voluntary departure), rather than instituting a standard removal proceeding in immigration court, granting deferred action and deciding whom to arrest for a violation of civil immigration law. Prosecutorial discretion may be exercised at any stage of an enforcement proceeding, but policy states that it should generally be exercised as early in the case as possible to preserve government resources. 24 DHS personnel who are authorized to initiate removal procedures include U.S. Customs and Border Protection (CBP) officers and U.S. Border Patrol agents (within CBP), asylum and examination officers in U.S. Citizenship and Immigration Services (USCIS), and detention officers and other agents in U.S. Immigration and Customs Enforcement (ICE); see 8 C.F.R (a). 25 U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriquez, Director, U.S. Citizenship and Immigration Services, and Alan D. Bersin, Acting Assistant Secretary for Policy, from Jeh Charles Johnson, Secretary of Homeland Security, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, November 20, 2014; and U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer, Officer of Civil Rights and Civil Liberties, and Philip A. McNamara, Assistant Secretary, Intergovernmental Affairs, from Jeh Charles Johnson, Secretary of Homeland Security, Secure Communities, November 20, U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, and Catherine Emerson, Chief Human Capital Officer, Department of Homeland Security, from Jeh Charles Johnson, Secretary of Homeland Security, Personnel Reform for Immigration and Customs Enforcement Officers, November 20, Congressional Research Service 7

13 other law enforcement agency, DHS must exercise prosecutorial discretion in the enforcement of the law. And, in the exercise of that discretion, DHS can and should develop smart enforcement priorities, and ensure that use of its limited resources is devoted to the pursuit of those priorities. 27 The memorandum states that prosecutorial discretion should apply to initiating or suspending a removal proceeding as well as other enforcement decisions, such as deciding who to stop, question, arrest and detain; whether to continue to pursue a removal case; and whether to grant deferred action, parole, or a stay of removal. While DHS may exercise prosecutorial discretion at any stage of an enforcement proceeding, the policy states it is preferable to do so as early as possible to conserve government resources. The memorandum lays out the following enforcement priorities: (Highest) Priority 1: threats to national security, border security, and public safety aliens engaged in or suspected of terrorism or espionage, or who otherwise pose a threat to national security; aliens apprehended at the border or ports of entry while attempting to unlawfully enter the United States; aliens convicted of an offense that involves participating in a criminal street gang, 28 or aliens who are 16 years or older who intentionally participated in an organized criminal gang to further illegal activity of the gang; and aliens convicted of felonies. 29 Priority 2: misdemeanants and new immigration violators aliens convicted of three or more misdemeanors 30 or a significant misdemeanor; 31 aliens who are unlawfully present and were not physically present before January 1, 2014; and aliens who have significantly abused the visa or visa waiver programs (i.e., terms of admittance). Priority 3: aliens issued final orders of removal after December 31, U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection, Leon Rodriquez, Director, U.S. Citizenship and Immigration Services, and Alan D. Bersin, Acting Assistant Secretary for Policy, from Jeh Charles Johnson, Secretary of Homeland Security, Policies for the Apprehension, Detention, and Removal of Undocumented Immigrants, November 20, 2014, p Criminal street gang is defined in 18 U.S.C. 521(a). 29 Felonies include any offense classified as a felony in the convicting jurisdiction, and any aggravated felony as defined in INA 101(a)(43). 30 This excludes traffic offenses. 31 Significant misdemeanor is defined as an offense of domestic violence, sexual abuse or exploitation; burglary; unlawful possession or use of a firearm; drug distribution or trafficking; or driving under the influence; or one for which the individual was sentenced to time in custody for 90 days or more. Congressional Research Service 8

14 According to the memorandum, unless certain circumstances are met, aliens described in Priority 1 must be prioritized for removal, those in Priority 2 should be removed, and those in Priority 3 should generally be removed. 32 The President s executive action issued on November 20, 2014, revises enforcement priorities and rescinds and supersedes related policies issued in 2011 and 2012 by then-ice Director John Morton. 33 The previous priority levels were (1) aliens who pose a danger to national security or a risk to public safety; (2) recent entrants; and (3) aliens with final orders of removal (i.e., fugitives or absconders) or who otherwise obstruct immigration controls. The most substantive change in enforcement priorities between the newly issued policy and policies from earlier years 34 is that an alien who was issued a final order of removal prior to 2014 is no longer an enforcement priority, provided he or she is neither a criminal nor a national security concern. 35 Other changes include increasing the priority level of aliens apprehended at or between ports of entry while attempting to illegally enter the country, and providing more specificity on the types of misdemeanor offenses that make an alien a focus for removal. Detention Priorities As with the previous Morton policy memorandum on detention and removal priorities, 36 the November 20, 2014, memorandum on enforcement priorities specifies that as a general rule, detention resources should be used to support enforcement priorities noted above or for aliens subject to mandatory detention under the law. 37 In keeping with earlier policy, the memorandum also states that, absent extraordinary circumstances or the statutory requirement of mandatory detention, ICE should not detain aliens who are 32 The policy leaves room for discretion among DHS personnel, even with Priority 1 aliens. The policy states that an alien should be prioritized for removal unless he or she may be eligible for relief from removal or factors exist that, in the judgment of DHS personnel, indicate the person should not be an enforcement priority. Notably, Priority 1 requires compelling and exceptional factors that clearly indicate the alien is not a threat to national security, border security, or public safety and should not therefore be an enforcement priority, while Priority 3 requires the alien is not a threat to the integrity of the immigration system or there are factors suggesting the alien should not be an enforcement priority. 33 John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement, Washington, DC, March 2, 2011; John Morton, Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, U.S. Department of Homeland Security Immigration and Customs Enforcement, Washington, DC, June 17, 2011; and John Morton, Prosecutorial Discretion: Certain Victims, Witnesses, and Plaintiffs, U.S. Department of Homeland Security Immigration and Customs Enforcement, Washington, DC, June 17, Although the immigration agencies have issued guidance regarding enforcement priorities since at least 1975, analysis of the evolution of enforcement priorities is beyond the scope of this report. 35 Aliens who have been issued final orders of removal but who have not departed from the United States are known as absconders or fugitive aliens. Since FY2002, there has been a concerted effort to remove absconders. In 2003, Congress mandated that the names of absconders be added to DOJ s National Crime Information System. See archived CRS Report RL33351, Immigration Enforcement Within the United States, coordinated by Alison Siskin, and CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel. 36 John Morton, Memorandum on Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, U.S. Immigration and Customs Enforcement, Washington, DC, March 2, Under statute, those subject to mandatory detention include criminal aliens, national security risks, certain arriving aliens, and select persons with final orders of removal. For more on mandatory detention, see CRS Report RL32369, Immigration-Related Detention, by Alison Siskin, and CRS Report WSLG524, How Mandatory Is the Mandatory Detention of Certain Aliens in Removal Proceedings, by Michael John Garcia. Congressional Research Service 9

15 known to be suffering from serious physical or mental illness; disabled, elderly, pregnant, or nursing; primary caretakers of children or infirm persons; or not in the public interest to detain. Removal Statistics ICE and the Office of Immigration Statistics (OIS) both report removal statistics, but immigration observers have raised questions about their accuracy. 38 In addition, removal statistics are used to evaluate DHS s adherence to stated policies on enforcement priorities. 39 Through the executive action, DHS Secretary Johnson directs OIS, with the cooperation of CBP, ICE, and USCIS, to create the capability to collect and maintain data reflecting the numbers of those apprehended, removed, returned, or otherwise repatriated by any component of DHS. He further directs that these statistics be made publically available on an annual basis. Secure Communities/Interoperability Secure Communities was the original name given to an information sharing program that uses biometric data to screen for removable aliens as people are being booked into jails. The program began in late 2008 in about a dozen jurisdictions and since FY2013 has been operational in all state and local law enforcement jurisdictions in the country. As early as 2011, DHS began referring to this program as interoperability between local law enforcement, the Federal Bureau of Investigation (FBI), and DHS. 40 Secure Communities/interoperability is not an enforcement unit. When law enforcement agencies book (take custody of) someone and submit the person s fingerprints to the FBI for criminal background checks, 41 the fingerprints are also automatically checked against DHS s Automated Biometric Identification System (IDENT) database. 42 If the person is matched to an immigration record in IDENT, ICE is notified and determines whether any action is necessary or appropriate 38 For example, see Mark Hugo Lopez, Ana Gonzalez-Barrera, and Seth Motel, As Deportations Rise to Record Levels, Most Latinos Oppose Obama s Policy, Pew Research Hispanic Trends Project, Washington, DC, December 28, 2011, Appendix A. 39 For example, see Jessica Vaughan, Deportation Numbers Unwrapped: Raw Statistics Reveal the Real Story of ICE Enforcement in Decline, Center for Immigration Studies, Washington, DC, October 2013; and Brian Bennett, "High Deportation Figures are Misleading," LA Times, April 1, 2014, p Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security Advisory Council, Washington, DC, September 2011, p. 11; and ICE, Congressional Budget Justification FY2014, p DOJ s Integrated Automated Fingerprint Identification System (IAFIS) conducts criminal and terrorist background checks in response to requests from federal, state, and local law enforcement agencies by checking fingerprints against the IAFIS database of fingerprints, criminal histories, photographs, and biographic information. See Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, fingerprints_biometrics/iafis/iafis. 42 The IDENT database is DHS s primary department-wide biometric database, and includes photographs, fingerprints, biographic name, personal identifier data, citizenship and nationality, and derogatory information, if applicable. See DHS, Privacy Impact Assessment for the Automated Biometric Identification System (IDENT), Dec. 7, Congressional Research Service 10

16 based on the agency s enforcement priorities. 43 Aliens identified for removal are placed in removal proceedings by ICE agents, typically from the Criminal Alien program (CAP). 44 As part of the President s executive action, Secretary Johnson directs ICE to discontinue Secure Communities. 45 However, the data interoperability between DOJ and DHS created under the name Secure Communities is not being discontinued. Instead, the program is being renamed and enforcement priorities changed for those identified as possibly removable aliens through the interoperability process. Consistent with the policy memorandum on enforcement priorities, the policy memorandum on Secure Communities specifies that ICE should only seek a transfer for an alien in state or local custody if he or she has been convicted of a Priority 1 offense or of multiple or significant misdemeanors. Under the revised priorities, unless aliens pose a demonstrable risk to national security, enforcement actions will only be taken against those convicted of specifically enumerated crimes. The new program will be called the Priority Enforcement Program (PEP). The Secure Communities memorandum also addresses the issue of immigration detainers. These are documents in which ICE advises law enforcement agencies of its interest in individuals whom these agencies are detaining, and to take actions (such as holding the alien temporarily) to facilitate their removal. 46 The increased use of immigration detainers under Secure Communities has raised legal questions regarding their use. 47 Under the revised policy, ICE will replace requests for detention with requests for notification (i.e., that state or local law enforcement notify ICE of an alien s pending release from custody). Under special circumstances, a detention request may be issued if the person is subject to a final order of removal or if sufficient probable cause exists to find the person removable. Some contend that the Secure Communities program has led to unfair treatment of selected individuals (e.g., a person is arrested rather than just given a warning or ticket because of his or her perceived immigration status) as well as some improper arrests and unlawful detention (e.g., a person is arrested on a false change because he or she is perceived to be unlawfully present). 48 In the Secure Communities memorandum of November 20, 2014, the DHS Secretary directs the Office of Civil Rights and Civil Liberties to develop and implement a plan to monitor state and local law enforcement agencies participating in the transfer of foreign nationals to ICE. 43 Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security Advisory Council, Washington, DC, September 2011, p The Criminal Alien Program (CAP) is an umbrella program that includes several different systems for identifying, detaining, and initiating removal proceedings against criminal aliens incarcerated within federal, state, and local prisons and jails, as well as at-large criminal aliens that have been released into communities after serving their sentences. Immigration and Customs Enforcement, Enforcement and Removal Operations, Crimnal Alien Program, Fact Sheet, Washington, DC, See also CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel. 45 U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, Megan Mack, Officer, Office of Civil Rights and Civil Liberties, and Philip A. McNamara, Assistant Secretary for Intergovernmental Affairs, from Jeh Charles Johnson, Secretary of Homeland Security, Secure Communities, November 20, ICE and its predecessor, the Immigration and Naturalization Service (INS), have used detainers as one means of obtaining custody of aliens for removal proceedings since at least CRS Report R42690, Immigration Detainers: Legal Issues, by Kate M. Manuel. 47 See CRS Report R42690, Immigration Detainers: Legal Issues, by Kate M. Manuel. 48 Chuck Wexler et al., Taskforce on Secure Communities Findings and Recommendations, Homeland Security Advisory Council, Washington, DC, September 2011, p. 26. Congressional Research Service 11

17 Personnel Reform As part of the President s executive action, DHS also announced a recalibration of the workforce and pay structure for ICE Enforcement and Removal Operations (ERO) personnel. 49 The related memorandum directs ERO and the DHS Office of the Chief Human Capital Officer to review the job series and premium pay coverage for ERO officers and determine any changes that may be required. The Administration will then pursue and prioritize regulations and legislation necessary to achieve the desired changes. According to the Administration, ERO s enforcement strategy and initiatives have shifted toward investigations, identification, location, arrest, prosecution, and removal of criminal aliens and other aliens who pose risks to national security. However, ERO s personnel structure lags behind other law enforcement agencies and other components of ICE, harming morale and presenting management challenges. 50 Some observers contend that personnel issues related to pay structure have existed for years at ERO, and that the reforms within the President s executive actions were timed for political purposes. 51 Discussion Since 2002, DHS has made concerted efforts to locate and remove absconders. 52 The President s executive action of November 20, 2014 no longer makes such aliens enforcement priorities if they were issued final orders of removal prior to 2014 and are neither criminals nor national security concerns. At the start of FY2014, ICE reported a backlog of 469,151 fugitive aliens who had not been apprehended. 53 The Administration stated it is undertaking this policy to allow DHS to focus its limited resources on higher enforcement priorities. It is not known, however, how many fugitive aliens would qualify for the President s deferred action initiatives, but some overlap between the two programs can be expected. Time will be required to measure the impact of the new enforcement priorities on the types of aliens who are located and removed. In addition, until implemented it remains unclear exactly what the effect of the new PEP program will be, compared to the former and in some ways comparable Secure Communities program it replaced. The enforcement priorities memorandum of November 20, 2014, suggests that ICE will issue fewer detainers with state and local law enforcement, focusing only on higher priority cases. It is also unclear how well the new requests for notification will effectuate the transfer of aliens to ICE custody, given that not all jurisdictions currently accept ICE requests for detention. 49 U.S. Department of Homeland Security, Memorandum to Thomas S. Winkowski, Acting Director, U.S. Immigration and Customs Enforcement, and Catherine Emerson, Chief Human Capital Officer, Department of Homeland Security, from Jeh Charles Johnson, Secretary of Homeland Security, Personnel Reform for Immigration and Customs Enforcement Officers, November 20, 2014, p Ibid, p Dan Cadman, Analysis of Obama's Executive Amnesty Scheme: ICE Personnel Reform, Center for Immigration Studies, Washington, DC, December 2, Aliens who have been issued final orders of removal but who have not departed from the United States are known as absconders or fugitive aliens. In 2003, Congress mandated that the names of absconders be added to DOJ s National Crime Information System. See archived CRS Report RL33351, Immigration Enforcement Within the United States, coordinated by Alison Siskin, and CRS Report R42057, Interior Immigration Enforcement: Programs Targeting Criminal Aliens, by Marc R. Rosenblum and William A. Kandel. 53 ICE, Congressional Budget Justification FY2015, pp Congressional Research Service 12